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The Roberts Court Comes Of Age

Professor Jeffrey Fisher and lecturer Thomas Goldstein are quoted on the retirement of U.S. Supreme Court Justice John Paul Stevens. Adam Liptak of the New York Times filed this story:

Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.

A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

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“The court continues its march to restrict exclusionary rules,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They’re leading the retreat.”

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Thomas C. Goldstein, a lawyer with Akin Gump Strauss Hauer & Feld and the founder and publisher of Scotusblog, which prepared comprehensive statistics about the court, said the court’s five more conservative members — Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — were simultaneously aggressive and selective.

“I’m struck by the ways in which the conservatives seem to be willing to take significant steps on core questions,” Mr. Goldstein said, noting campaign finance and Miranda rights as examples. “In other cases, the five more conservative members of the court don’t seem to be prepared to press every advantage.”

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“The term as a whole will go down principally for what we see in the evolution of John Roberts and his leadership of the institution,” Mr. Goldstein said. “He cares about the position of the court in American life. He is not pressing every ideological question but is willing to cross over.”

The court is also losing a bit of a maverick who was often skeptical of government power. With a Justice Kagan, Professor Fisher said, “we could be moving more to a court that is willing to defer to the executive.”

Seniority has privileges at the court. The senior justice speaks second at the court’s private conferences, after the chief justice. If the chief justice is not in the majority, the next-most-senior justice assigns the majority opinion.

“Stevens’s seniority and experience on the court really carries a lot of heft,” said Professor Fisher, who served as a law clerk to Justice Stevens. “Even if the exact same person could be reincarnated tomorrow as a junior justice, it would still be a huge loss.”